Losing Sleep: a deep dive into the court rulings that could upend the home care industry

Cuomo: City needs to help H+H­­­­

In a statement late Friday, Gov. Andrew Cuomo called on local governments to “reduce the pain” inflicted by cuts to the Disproportionate Share Hospital program. He asked New York City to make up for NYC Health + Hospitals' funding losses.

Cuts to the federal program, which helps cover the financial losses sustained by hospitals treating Medicaid and uninsured patients, took effect Oct. 1. Payments to New York facilities will fall by $1.1 billion during the next 18 months, according to the state.

Cuomo compared the funding reduction to a missile of destruction from Washington D.C. aimed at New York. He said the state’s public hospitals, including NYC Health + Hospitals, SUNY Downstate Medical Center, Nassau University Medical Center and Westchester Medical Center, would be directly affected.

“The situation is clear, the first source of financial assistance for these hospitals must be their associated local governments and SUNY,” he said.

The announcement follows a plea from NYC Health + Hospitals’ Interim Chief Executive Stanley Brezenoff, who called on the Cuomo administration Friday to release $380 million in Disproportionate Share Hospital program money that the health system was due to receive during the last fiscal year, which ended Sept. 30. He told the health system’s board that the missed payment leaves the system with just 18 days of cash on hand.

State Medicaid Director Jason Helgerson responded to Brezenoff in a letter Friday that the state Department of Health is working with KPMG as a financial adviser to analyze the status of hospitals receiving DSH money “to determine a strategy for how to best absorb the impact of the next year’s $1.1 billion hit,” he wrote in a letter provided to Crain’s.

Asked about the letter, a City Hall spokeswoman said the scheduled cuts should not affect the delivery of NYC Health + Hospitals' payment for the previous fiscal year.

"It makes absolutely no sense that the state would withhold funding from one year because they're anticipating cuts the next,” she said. “We have an immediate problem at Health + Hospitals. We don't have months for the State to give us what we're owed. ­—J.L.

Hospitals push for delay in DSH cuts

Cuts to the Disproportionate Share Hospital program went into effect over the weekend, but New York hospitals continue to lobby to push back the funding reductions.

House lawmakers, including Rep. Eliot Engel, whose district includes parts of the Bronx and Westchester County, sent a letter to Speaker Paul Ryan and Minority Leader Nancy Pelosi urging a two-year delay to the cuts. New York would receive $330 million less in funding this fiscal year, which began Oct. 1, and $2.6 billion less by 2025.

"In treating those who have nowhere else to turn, these hospitals incur substantial uncompensated costs," the letter reads. "Furthermore, these same hospitals typically operate on very narrow, or even negative, margins."

In all, 221 representatives signed on to the letter, including the entire New York delegation, except for Republicans Tom Reed and Chris Collins. Greater New York Hospital Association President Kenneth Raske said in a letter to members he was "grateful" to Engel for his leadership.

John Jurenko, vice president of intergovernmental relations at NYC Health + Hospitals, told the system's board during a meeting Friday that he was hopeful the House would delay the DSH cuts as part of a bill reauthorizing the Children's Health Insurance Program, which will be marked up by the Energy and Commerce Committee this week. ­—J.L.

Audit faults pace of reviews of nurse misconduct

The state Education Department, which licenses nurses in New York, has fallen behind in investigating and prosecuting complaints of professional misconduct against nurses, an audit by state Comptroller Thomas DiNapoli found.

Priority 1 investigations, which involve complaints about behavior that poses a substantial danger to public health and safety, are supposed to be completed within six weeks. However, about 83% of the Priority 1 investigations undertaken between April 2014 and February 2017 were open for longer than that, taking an average of about seven months to complete.

In addition, lower-priority investigations that are open for longer than 360 days are supposed to be reclassified as Priority 1 investigations in order to be expedited. That did not happen but in 482 cases, according to the comptroller's audit.

The audit recommended that the Education Department take steps to streamline investigations and find ways to strengthen moral-character requirements for nurses.

In a response issued Sept. 1, the Education Department said it would do a comprehensive review of all Priority 1 cases, starting with the oldest first, to identify and resolve any obstacles to closing the investigations. The Education Department also noted that it's often necessary to involve a prosecutor early on in a Priority 1 case. That may lead to it being open longer even though it is being properly addressed.

Raising a separate issue, the Education Department said "many of our cases are becoming increasingly difficult to investigate as facilities are unwilling to share documentation with our agency." —C.L.

AT A GLANCE

RECRUITING BEZOS: Can Amazon Chief Executive Jeff Bezos apply his disruptive magic to fix what ails the health care sector? An open letter to Bezos published in Quartz from professor Amitai Etzioni of George Washington University suggests as much. "Only you have the vision, ambition, capital and computing power this mission requires. Google comes close but does not have your superb delivery system, essential for this mission," wrote Etzioni.

HELPING PUERTO RICO: In one day New York's hospitals raised $5 million, half of their fundraising target, to assist Puerto Rico's hospitals and health care workers and their families on the island and in other Caribbean nations devastated by Hurricane Maria. "We want each and every health care worker, as well as their families and loved ones, to know that New York's entire hospital community stands with them in their time of need, and we will do everything we can to help them recover," Kenneth Raske, president of the Greater New York Hospital Association, and Bea Grause, president of the Healthcare Association of New York State, said in a joint statement.

Losing Sleep: a deep dive into the court rulings that could upend the home care industry

Lai Yee Chan worked piece-rate in the city's textile factories for more than a decade to support her three children after she emigrated from China in the late 1980s. She sometimes labored until 2 a.m. for such brands as DKNY and saw co-workers faint from the stifling summer heat in a Midtown warehouse.

Chan's current workplace, the apartment of an elderly man with Alzheimer's who was partially paralyzed by a stroke, looks nothing like the factory floor. But during the seven years when she cared for him in 24-hour shifts, it felt like a sweatshop just the same.

Chan is part of a cohort of New York home care workers that has filed more than a dozen class-action lawsuits against employers to challenge an industrywide practice known as the 13-hour rule, a state-sanctioned policy in which home care workers are paid for just 12 or 13 hours of a 24-hour shift.

"Getting paid for 12 or 13 hours is exploitation," said Chan, 62. "This should never have happened in a civilized society."

Last month a panel of state appellate court judges agreed. After reviewing two of the lawsuits, the judges ruled that the 13-hour policy was illegal. Although the agencies named as defendants, New York Health Care and Future Care Health Services, said they want to appeal the decisions, Chan is hoping the rulings will be upheld and serve as legal precedent in her own case.

As Chan and her colleagues celebrated last month, owners of the state's 1,500 or so registered home care agencies were frantically contacting their trade associations for guidance on what to do next. They had followed the lawsuits for years through multiple appeals and delays, and now their worst fears were materializing.

Eliminating the 13-hour rule would effectively double the cost of providing the round-the-clock assistance many elderly and disabled New Yorkers rely on to remain at home. The rulings also could put agencies on the hook for back wages for any employee who worked a 24-hour shift in the past six years, according to the statute of limitations in New York. That alone could amount to billions of dollars, one trade group estimated. Many of the agencies are nonprofits operating on tight margins and say they could be forced to shutter.

"As far as potential costs, it will destroy the industry," said Matthew Hetterich, director of corporate business development at Utopia Home Care, based in Kings Park, Long Island, and president of the Long Island Chapter of the New York State Association of Health Care Providers.

How the state's court cases are resolved could determine the future health of home care agencies, the well-being of workers and the choices that families make about the care of their loved ones.

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